Intellectual Property in the new European Commission.

A snapshot

David Córdova|13 octubre, 2014

Introduction

In a frantic year of institutional changes in the European Union, it is now time for the new European Parliament and the European Council to approve the 27 Commissioners designated by the recently appointed Commission President, Jean-Claude Juncker.

All through last week and up to October 7th, Juncker´s team of Commissioner designates have facedscrutiny from MEPs in a round of hearings that are part of the process to get them confirmed. In addition to five written questions from MEPs that the potential Commissioners need to reply in writing, they also face a three-hour grilling session to answer questions by the MEPs on the portfolios they have been nominated to take up, in order to assess their suitability. The Conference of Presidents of the European Parliament will declare in principle the hearings closed and there should be a vote in Plenary on October 22nd.

If all goes well, the new Commission will take office as of 1st November for the next five years, and the changes Juncker has announced in the arrangement of portfolios will finally be put into practice. Not only are most of the designated Commissioners new to the post, but the elected Commission President has also reallocated certain portfolios to different Directorate Generals (DGs) and has created a much talked-about system of Vice-Presidents who are in charge of specific DGs arranged in clusters.

New faces, new competences

These changes are particularly visible in the field of intellectual property, where the soon-to-be Commissioner for Digital Economy and Society (DES), Günther Oettinger, will now be under the umbrella of the Digital Single Market cluster, directed by Commission Vice-president, Andrus Ansip, and will also take over files that were previously under different DGs.

Oettinger, a 60 year-old conservative German politician, is chancellor Merkel´s ally and is not new to the job since he was the Commissioner for Energy in the previous Commission, but he has no previous experience in IP and broader technology issues. His hearing before the committees of industry and research (ITRE) and culture and education (CULT) on Monday 29th September was considered by experts to be convincing but slightly unenthusiastic and vague on specific policy options.

His new responsibilities as Commissioner for Digital Economy and Society will include taking over from outgoing Neelie Kroes´ former DG Connect (Communications Networks, Content & Technology), but also the units responsible for copyright – which was formerly under DG Market (internal market) and is being transferred -, and the Creative Europe Programme, the European Commission’s framework programme for support to the culture and media sectors, which was until now in DG Education and Culture.

As for the new head of the Digital Single Market, Commissioner Vice-President Andrus Ansip, he is a former Estonian Prime Minister who has been appointed by Juncker to steer and impulse one of the ten priorities of the Juncker Commission – the Connected Digital Single Market. Iin the written answers he had submitted to Parliament´s questions ahead of his hearing he reinstated his fervent support for the Digital Single Market of the EU. While Oettinger´s appointment has been welcomed with lukewarm reactions, Ansip has been welcomed much more enthusiastically since as Prime Minister he has led Estonia to be at the forefront of technology and e-services.

Another relevant face for the next term will be V?ra Jourová of the Czech Republic, a former Czech regional development minister who has been nominated by Juncker to be the Justice, Consumers & Gender Equality Commissioner and will as such be in charge of the ongoing data protection reform. Jourová appeared before the European Parliamente committees of legal affairs (JURI), civil liberties, justice and home affairs (LIBE), women´s rights and gender equality (FEMM) and internal market and consumer protection (IMCO) on October 1st and apparently failed to convince MEPs of her suitability for the role. If her appointment is confirmed, she will also fall under Ansip´s umbrella of the Digital Single Market cluster.

Also worth noting is the fact that Juncker´s own head of cabinet, Martin Selmyar, is also technology and digital-savvy. As former head of cabinet of Viviane Reding, former Commissioner for Justice, he was partly competent for data protection issues, and he previously worked as legal advisor at Bertelsmann, with special focus on audiovisual, telecommunications and competition issues.

Hot issues –the priorities for the next five years

Oettinger made it clear during his hearing before the European Parliament that copyright enforcement is at the top of his list of priorities. His predecessor, outgoing Commissioner for the Internal Market Michael Barnier has struggled during his term to impulse copyright reform.

A Commission White Paper (a preamble to legislative proposals) on “A Copyright Policy for Creativity and Innovation in the European Union” initially drafted by Barnier´s DG Market was due in June 2014, but was postponed until after the summer after other DGs (notably DG Connect and its Commissioner Neelie Kroes) judged the draft not to be ambitious enough. Barnier recently acknowledged that the controversial document will not see the light before the end of his term and that the new Commission will have to take on the file.

The political direction of the new Commission with regards to this issue remains to be seen, since Oettinger stressed before the European Parliament that he stands for reliable protection of copyright but was not more specific on his views on the topic and on how he intends to balance the traditionally different approaches of his predecessors Barnier and Kroes. Stakeholders from the right-holders community such as the Federation of European Publishers (FEP) have already expressed their concern at the move of the copyright file to the new DG Digital Economy and Society at the risk that this DG might promote the interests of internet service providers over rightholders’ interests.

Equally important is the package of telecom reforms. Following the European Commission´s proposal of September 2013 to launch a wide reform of the telecoms sector, the European Parliament adopted the “Connected Continent” package of telecom reforms in March 2014. The file was steered by Spanish MEP Pilar del Castillo and the ball is now in the court of the European Council (the Heads of State and Government), who has to vote on the legislative proposal with the amendments drafted by the Italian government (holding the rotating Presidency of the Council until 31st December 2014).

The Italian Presidency has vowed to get the reform approved before the end of the year but negotiations are proving to be difficult. Oettinger, who is seen as more sympathetic to the big telecoms companies than his predecessor Kroes, will have to ensure that the modernization of the sector is finalized during his term and that a compromise is reached on issues like roaming charges and net neutrality.

The pending reform of data protection rules is also on Oettinger´s list but will be led by his colleague Jourová, under the supervision of Commission Vice-President Ansip. The Commission´s proposal for a General Data Protection Regulation which plans to unify data protection within the EU was adopted by Parliament earlier this year and is awaiting a decision by the European Council. If approved, the Regulation would extend EU data protection law to all foreign companies processing data of European residents. This issue has come into the limelight as the negotiations between the EU and the US to conclude a trade and investments agreement (TTIP) are ongoing and also in the wake of the NSA surveillance scandal, which has triggered a larger debate about privacy and the Internet.

If Oettinger´s new portfolio was considered by some not to be a big enough file for a German Commissioner, others believe that German chancellor Angela Merkel is interested in keeping a close eye on data protection and that this would justify Juncker´s choice. Oettinger, for his part, will also take the lead on the reform of the e-privacy Directive and cyber security issues.

Conclusions

Jean-Claude Juncker has said before and after being elected that he considers the digital agenda to be key for the new Commission. Together with his college of Commissioners, a lot of work needs to be done to get there in the next five years. There is a delicate balance to be struck between enabling technology and services and at the same time protecting right-holders and consumers, balancing national interests and more generally, keeping up with technology advances in a sector where technology and the changes it produces in business and society as a whole move faster than policy-making.